New war crimes review opposed

Posted Wed, March 20th, 2013 4:23 pm by Lyle Denniston

Lawyers for a Yemeni national whose convictions on war crimes have been overturned by the D.C. Circuit urged that court on Wednesday not to reconsider the decision, and argued that the ruling is not interfering with the military commissions now operating at Guantanamo Bay. The brief in response was filed at the request of the Circuit Court; the Obama administration has asked the en banc Circuit Court to rehear this dispute — as a prelude to taking the case on to the Supreme Court.

A military commission had found Ali Hamza Suliman Ahmad Al Bahlul guilty of conspiracy to commit terrorist acts, solicitation of others to do so, and providing material support to terrorists, and he was sentenced to life in prison. He was described by military prosecutors as a public relations aide to Al Qaeda terrorist leader Osama bin Laden.

Those verdicts were overturned in January by a three-judge panel of the Circuit Court. The panel did so at the suggestion of the Obama administration, as it conceded that the charges could not stand in the wake of a separate decision by the Circuit Court last October that military commissions could not try individuals for crimes that were committed before Congress created the present commission system in 2006.

Although the administration, in asking for en banc review of the Bahlul case (because the decision there had depended upon the Circuit Court’s October ruling in Hamdan v. United States), had argued that these rulings would disrupt virtually all prosecutions for war crimes at Guantanamo, Bahlul’s attorneys said that the government was exaggerating the impact. The reality, it argued, is that the impact will be “trifling.”

So far, the new filing said, only seven individuals have been convicted at Guantanamo under the 2006 law: Bahlul, plus the individual involved in the Hamdan case, and five others who have pleaded guilty in exchange for release from the military prison there. And, for cases still awaiting trials, the filing said, the military has ample war crimes charges that it can pursue that would not be affected by the Circuit Court’s decision. Some of those available charges, it added, could lead to the death penalty.

“The government has failed to show why this court’s decisions are exceptional, let alone exceptionally in error,” the new brief contended. If the government wants its view of the commissions’ power to prevail, the brief added, it can take the case to the Supreme Court or ask Congress to amend the 2006 law anew.

Because of the composition of the Circuit Court at present, with seven judges, it seems unlikely that a majority of four would be likely to vote to rehear the case en banc. Thus, the government’s plea for a new review may simply serve to give it more time to prepare an appeal to the Supreme Court. Such an appeal could be filed within ninety days after an order of the Circuit Court to refuse further review.

Under the Circuit Court order asking Bahlul’s attorneys to reply to the government rehearing request, the Circuit Court said it would not allow any further filing by the government. That was an indication that the Circuit Court probably will act quickly on the en banc review request.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.